Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit
Touch N' Go's Website to see how.
Dayton v. State (6/21/2002) ap-1806
Dayton v. State (6/21/2002) ap-1806
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
ANDREW DAYTON, )
) Court of Appeals No. A-
7724
Appellant, ) Trial Court No.
4FA-S98-2438 CR
)
v. ) O P I N I
O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1806 June
21, 2002]
)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Jane F. Kauvar,
Judge.
Appearances: James E. McClain, Law Offices
of James E. McClain, Fairbanks, for
Appellant. Nancy R. Simel, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
On August 7, 1998, Andrew Dayton broke into S.S.'s
house in Huslia and sexually assaulted her. For this misconduct,
Dayton was charged with first-degree sexual assault and first-
degree burglary.1 Dayton's first trial ended in a hung jury, but
he was convicted at his retrial.
In this appeal, Dayton challenges the admission of DNA
evidence at his trial. At trial, Dayton challenged the
reliability of a new database used for statistical analysis of
DNA profile frequencies. Dayton now claims the superior court
erred because it did not conduct a mid-trial hearing at his
retrial. Dayton also claims the superior court should have
granted his motion to require the State to produce the names of
the people who supplied genetic samples for that database. We
conclude that we need additional findings from the superior court
to resolve Dayton's claims.
Facts and proceedings
On the evening of August 6, Dayton attended a
bachelor's party in Huslia and then walked around the village for
much of the night. He asked several people where sixty-seven-
year-old S.S. lived. Near 5:00 a.m. on the morning of the 7th,
Dayton knocked on S.S.'s door. S.S. thought it was her brother,
so she answered the door. Dayton forced his way inside and
sexually assaulted her.
Later that day, Paula Bifelt, the village health aide,
performed a sexual assault examination on S.S. and took samples
from S.S.'s vagina for testing. Dayton was arrested the next
day. As part of the investigation, the Alaska State Troopers
took blood samples from Dayton. In addition, mouth swabs were
obtained from S.S. and Bergman Sam, a man with whom S.S. was
drinking on the night before she was sexually assaulted.
Hayne Hamilton, a forensic serologist at the Alaska
Scientific Crime Detection Laboratory (hereafter "the crime
lab"), conducted DQ alpha and polymarker DNA analysis on the
vaginal, blood, and mouth samples. Based on this testing,
Hamilton eliminated S.S. and Bergman Sam as possible sources of
the DNA found in the sperm fraction from the sample obtained from
S.S.'s vagina. The testing showed that Dayton's DNA matched the
DNA from the sperm fraction. Hamilton testified that the
likelihood that the DNA profile from the sperm fraction would
appear randomly is 1 in 13,000 for African-Americans and 1 in
16,000 for Caucasians. Based on databases that the State had
previously developed, Hamilton projected that the frequency of
the DNA profile found in the sperm fraction was 1 in 3,500 for
North Slope Inupiat Eskimos and 1 in 2,000 for Bethel/Wade
Hampton Yup'ik Eskimos. However, Hamilton could not calculate a
DNA profile frequency for Athabascan Indians (Dayton is an
Athabascan Indian) because she did not have an Athabascan
database.
During the first trial, Dayton defended by arguing that
S.S. was drunk and did not remember events clearly and that the
DNA evidence was meaningless without an Athabascan database. He
also testified that he saw Bergman Sam and S.S. having
intercourse that night and implied that Alvin Dayton, his
brother, may have assaulted S.S. The first trial resulted in a
hung jury.
After the first trial, the crime lab adopted the short
tandem repeat (STR) system of DNA analysis. STR examines
thirteen genetic loci and is more discriminating than DQ alpha
and polymarker analysis, which looks at six genetic loci. In
addition, with the assistance of the Troopers, the crime lab
collected samples from Athabascan volunteers in various locations
within the state. Taking these newly collected samples and
samples from known Athabascans already on hand, the crime lab
selected samples for inclusion in the database and tested the
samples using the STR protocol.
Although the crime lab created the Athabascan database
after the mistrial and the sample collectors avoided samples from
anyone who might be related to Dayton, there was testimony at
trial that the samples were not collected solely for the purpose
of prosecuting this case.
At Dayton's retrial before Superior Court Judge pro tem
Jane F. Kauvar, the State again offered evidence that, based on
Dayton's DNA profile and the DNA profile of the semen fraction
collected from S.S., Dayton could not be excluded as the source
of the semen. The State again offered Hamilton's testimony that
Dayton was a potential sole source of the semen and that, based
on DQ alpha DNA testing and statistical analysis of several
databases, the likelihood of the DNA profile appearing randomly
was 1 in 13,000 for Caucasians; 1 in 16,000 for African-
Americans; 1 in 3,500 for North Slope Inupiat Eskimos; and 1 in
2,000 for Wade Hampton Yup'ik Eskimos.
The State also offered evidence that STR analysis
indicated that Dayton exhibited the same DNA profile as the sperm
fraction in the sample taken from S.S. The statistical analysis
of the likelihood that this DNA profile would be repeated
randomly in certain groups with existing databases was 1 in 22
billion for North American Caucausians, 1 in 6 billion for
African-Americans, and 1 in 413 million for Hispanics. Using the
Athabascan database developed by the state crime lab, the State's
expert testified that the likelihood was 1 in 2.5 million that
the DNA profile from the sperm fraction taken from S.S. would be
repeated randomly.
Dayton objected to the use of the Athabascan database.
He argued that the State had to establish the reliability of the
database in a hearing outside the presence of the jury before an
expert witness could use the database as a basis for providing
scientific evidence. Dayton relied on Daubert v. Merrell Dow
Pharmaceuticals, Inc.2 Judge Kauvar cited AS 12.45.035 and ruled
that a hearing was not required. She overruled Dayton's
objections.
At the conclusion of the State's case, Dayton asked for
discovery of the names of those people who contributed genetic
samples to the database. Dayton believed that a relative may
have donated a sample:
I do have some understanding that at least
one or more of the individuals who provided
[a sample] have the last name of Dayton. So
that just opens up the possibility they just
could be related. ... [A]ll I'm wanting this
for, the sole reason, is ... if we find out
that of a significant portion of [the donors]
are really related to Mr. Dayton and our
expert says ... that skews this[,] I think we
need to have it brought out at this trial.
Judge Kauvar refused to order the State to disclose the
individual donors' full names, although the judge said she would
consider ordering the State to provide Dayton with the number of
people in the database who had the last name Dayton. "Now, if
you want to [find] out how many of them have last names of
Dayton, I suppose we can find out just generically how many
people have the last name of Dayton in the sample." Dayton did
not respond to this offer.
Discussion
In Peters v. State,3 we held that DNA evidence i.e.,
evidence that a persons genetic profile matched the genetic
profile of tissue samples retrieved from some other person or
place must be accompanied by population frequency statistics for
that genetic profile.4 In other words, the proponent of DNA
evidence must produce evidence of how frequently the pertinent
genetic profile appears in the relevant population group.
In Dayton's case, the State presented evidence of how
frequently Dayton's genetic profile could be expected to appear
in persons selected at random from various population groups:
Caucasians, African-Americans, Hispanics, Inupiat Eskimos, and
Yup'ik Eskimos. Dayton did not challenge this evidence.
However, the State also presented genetic frequency data from an
Athabascan population group. Since Dayton is Athabascan, the
Athabascan genetic frequency data was potentially the most
probative. Dayton challenged this data by questioning whether
the State had employed scientifically valid methods to "sample"
this population group i.e., to select the individuals whose
genetic profile would be tested and catalogued. For instance,
Dayton suggested that the compilers of the database should not
have accepted genetic samples from persons who claimed to be
Athabascan without first requiring some independent corroboration
of that claim.
Under Alaska Evidence Rule 703, expert witnesses can
rely on facts or data outside their personal knowledge (indeed,
facts or data that would not necessarily be admissible
themselves) if those facts or data are "of a type reasonably
relied upon by experts in the [pertinent] field [when] forming
opinions or inferences upon the subject [at issue]." As the
Commentary to Evidence Rule 703 states, this rule was designed to
allow experts to rely on sources of information that constitute
the recognized "tools" of their profession information that
otherwise could not be introduced without "the expenditure of
substantial time in producing and examining various
authenticating witnesses":
[This] rule is designed to broaden the basis
for expert opinion, in accordance with the
belief that when an expert is deemed skilled
enough to assist the trier of fact, the
expert should be allowed to utilize the tools
that he [or she] normally uses to practice
his [or her] skills outside of the court.
Thus, a physician ... bases his [or her]
diagnosis on general information obtained
from medical journals and treatises and on
information about the patient [obtained] from
numerous sources ... of considerably variety,
including statements by patients and
relatives, reports and opinions from nurses,
technicians and other doctors, hospital
records, and x-rays. Some of these sources
would be inadmissible in evidence; most of
them are admissible, but only with the
expenditure of substantial time in producing
and examining various authenticating
witnesses. The physician makes life-and-
death decisions in reliance upon [such
information]. [This reliance], expertly
performed and subject to cross-examination,
ought to suffice for judicial purposes.5
In Dayton's case, the State's
forensic analyst offered an opinion based on
a database of genetic frequencies among the
Athabascan population concerning the
likelihood that someone other than Dayton was
the source of the genetic material recovered
from the victim's body. In offering this
opinion, the State's expert could validly
rely on the Athabascan DNA database if this
database met the test of Evidence Rule 703
i.e., if it was the type of data that experts
in the field would reasonably rely on.
But Dayton's trial judge refused to
allow inquiry into this question, and the
judge made no finding as to whether the
Athabascan DNA database had been collected
and analyzed in such a manner that experts
would reasonably rely on it. This was error.
Dayton was entitled to litigate this
foundational fact. We therefore remand
Dayton's case to the superior court so that
this litigation can take place. The superior
court shall make findings on this issue and
transmit those findings to us within ninety
days.
Even though we are remanding
Dayton's case for further proceedings, we can
resolve one other claim Dayton raised at
trial. After the State presented the DNA
evidence, Dayton asked the superior court to
disclose the names of all the individuals
whose genetic material was collected and
tested to create the Athabascan database.
Despite the argument that this disclosure
would violate these individuals' right of
privacy, Dayton maintained that he needed to
know this information. Dayton argued that
the probative value of the database would be
affected if many of the individuals whose DNA
was sampled turned out to be related to
Dayton.
Dayton's premise is correct: the
probative value of the database would be
affected if a substantial portion of the
sampled population was biologically related
to Dayton. However, the effect on the
database would favor Dayton.
If Dayton's biological relatives
were over-represented in the sampled
population, then the database would be over-
populated with people who share significant
portions of Dayton's genetic profile. Thus,
the database would over-report the frequency
of Dayton's genetic profile. This would work
in Dayton's favor. The State's case against
a defendant is bolstered by proof that the
defendant's genetic profile is relatively
rare. Conversely, the defendant's case is
bolstered by proof that many people share
these same genetic characteristics. If the
Athabascan DNA database was compiled from a
group that had more than its expected share
of Dayton's biological relatives, this
statistical aberration would favor Dayton.
We conclude that Judge Kauvar did not err
when she denied Dayton's mid-trial request
for the names of the individuals whose
genetic samples were included in the
Athabascan database.
Conclusion
We remand Dayton's case to the
superior court so that the court can resolve
the issue of whether the Athabascan database
is the type of data reasonably relied on by
experts who analyze the frequency of genetic
profiles. The superior court may, in its
discretion, accept additional evidence on
this issue. The court shall notify the
parties of its findings and shall transmit
its findings to us within ninety days.
After the superior court issues its
findings, the parties shall have thirty days
to file memoranda in response to those
findings. We shall then resume our
consideration of Dayton's case. We retain
jurisdiction.
_______________________________
1 AS 11.41.410(a)(1) and AS 11.46.300(a)(1),
respectively.
2 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469
(1993); see State v. Coon, 974 P.2d 386 (Alaska 1999)
(establishing a test for the admissibility of expert evidence
under Alaska Rule of Evidence 702 that parallels Daubert).
3 18 P.3d 1224 (Alaska App. 2001).
4 Id. at 1226-28.
5 Commentary to Alaska Evidence Rule 703, fifth
paragraph.
